Racial Justice Act

During the 2009 Session of the General Assembly, Senator Floyd McKissick(D) from Durham County introduced the Racial Justice Act SB461. The act provides a process by which statistical evidence could be used to establish that race was the basis for seeking or obtaining the death penalty in any case. The Act allows pre-trial defendants and inmates on death row the opportunity to challenge the decision to seek or impose capital punishment.

For the first time in twenty years, Dr. Isaac Unah and Professor John Boger, both from UNC-Chapel Hill conducted the first social scientific study on capital punishment in North Carolina. Their findings served as a basis for Senator McKissick’s bill. If the victim is white rather than a person of color, the study found, the odds of receiving a death sentence increases three and a half times.

After Senator McKissick presented the bill on May 13, 2009, it was amended twice before passing the Senate. Phil Berger(R) from Rockingham amended the bill so that it affirmed N.C. Supreme Court’s ruling in NC Dept Corrections v. NC Medical Board. The amended bill states that the medical board cannot punish doctors who participate in executions. The board had been using the threat of punishment to hinder executions in North Carolina since 2006.

Senator Fletcher Hartsell(R) from Cabarrus also amended the bill by cleaning up and simplifying some of the language before it was sent to the House of Representatives. The debate in the House over this bill was contested and lasted several hours before the legislation barely passed with a vote of 61 to 54.

In the final version of the bill that was sent to the Senate, there is a provision allowing a defendant to challenge the death penalty if race was thought to be a significant factor in their sentencing. To try and prove that race was an issue the defendant could use data or other evidence from a county, prosecutorial district, or contiguous district to try to make their case. The bill passed the Senate on August 5, 2009 with a vote of 25 to 18.

Almost immediately death row inmates began challenging their death sentences. As of January 2010, almost all of the inmates on death row in North Carolina (151 out of 158) had contested their sentences. The reviews of all of these cases are pending and leave no execution dates set in North Carolina in the near future. No one has been executed in the Tar Heel State since 2006.

Following the passage of the act, both the N.C. Administrative Office of the Courts (AOC) and the N.C. Department of Justice (DOJ) estimated the financial cost of the act. The AOC predicted that the extra court fees for claims made under the Racial Justice Act in the first year would be between $2.4 million and $6.2 million. The DOJ estimated that additional costs for appeals would be $4 million.

During the 2010 legislative short session, two different bills were presented that would amend the Racial Justice Act. Both amendments would establish that hearings to review cases under the Act would only be conducted post conviction. These amendments were spurred by the trial of Demeatrius Montgomery. He allegedly killed two Charlotte-Mecklenburg Police Officers in 2007. Even before the trial began, the Judge delayed the case to give his attorneys extra time to consider how the Racial Justice Act applied to their client.

Senator Malcolm Graham(D) from Mecklenburg presented his amendment SB 1429 on May 25, 2010, and argued that it was nonsensical for the defendant Montgomery to use the Racial Justice Act before the trial. Graham’s amendment quickly died in the Rules Committee.

On the House side of the General Assembly, Justin Burr(R) from Albemarle and Thom Tillis(R) from Cornelius presented their own amendment. Their bill HB2021 included the same provision that Graham’s had to alter the time frame of when the Racial Justice Act could be considered. The House bill failed as well.

In November of 2010, Republicans won a majority in the North Carolina House and the Senate. The Racial Justice Act is currently in a vulnerable position; Republicans in the Tar Heel State have been outspoken about their unanimous opposition to the Act.